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Superfunds May 2016
CASE 2
Sometimes vigorously following process
can result in unfair or unreasonable
treatment of a member. Query whether
the trustee’s delegate should have applied
the ‘pub test’— or rather—what is the
correct-thing-to-do-here test?
This case concerned the trustee delegate’s
decision to decline the member’s request for
an extension of time in which to apply for
a reconsideration of the decision to decline her
application for an invalidity benefit. That decision
was made in July 2003 and it was not until
February 2011 that the member asked for the
time extension (obviously a considerable delay).
The fund had granular rules around the
establishment of a reconsideration committee,
including the membership and functions of
this committee. An application to reconsider a
decision had to be made within 30 days of the
person being notified, unless there were special
circumstances. In essence, this case is about
whether there were special circumstances.
The member suffered a right shoulder injury
resulting in loss of movement, muscle atrophy,
deformity and chronic pain. This led to her
being subjected “to significant harassment
and ultimately bullied into resigning from [the
employer] in late 1996”. While her medical records
gave details of her injury, there was no provision
made for her “medical care or opportunity for
retraining after her resignation”. In 2002 the
member recommenced employment with the
same employer but shortly after she again injured
her shoulder. The Tribunal noted she was “almost
immediately” medically classified and “put on an
expedited path to an abrupt medical discharge”.
Interestingly, instead of her medical discharge
documentation referring to the shoulder injury
it stated she had a psychological personality-
based condition even though no doctor had ever
diagnosed her with such a condition. The member
went on to suffer significant financial hardship and
moved house 31 times in the period in question,
nine of those in 2003.
Her original application for an invalidity benefit
was denied and the trustee submitted it would
have sent her notice by letter to her known
address, although it could not prove she had
received the letter. The letter would have informed
her of the 30 day time limit for reconsideration.
The member denied receiving the letter.
The member then spent many years seeking
review of her medical discharge. In July 2012, the
office of the relevant government minister wrote
to her saying:
“that it was clear from her extensive medical
history that she had ‘a significant shoulder
problem’ and it was regrettable that her
medical classification determination may
have been interpreted as implying that you
did not have a medical condition or that your
condition was fictitious. Such interpretation
was unintended...”
In 2013 another government department
accepted her reviewed and updated diagnosis
of Somatoform Pain Disorder and right shoulder
laxity in addition to major depressive episode
and a special taskforce reviewing instances of
abuse concluded that her 1996 discharge and
subsequent 2003 medical discharge all fell within
the scope of abuse carried out by her employer.
Further, in additional information provided during
the Tribunal process, the member supplied a
formal letter dated 28 September 2015, that
acknowledged “the series of distressing and
abusive events” she had experienced and
apologised to her on behalf of the employer for
“the harm...done...and the devastating effect
this has had on [her]...life.”
So did these facts amount to special
circumstances in so far as they were unusual,
uncommon or exceptional?
The trustee was of the view that the rules
required medical evidence so an apology from
the employer could not be considered relevant
to the special circumstances test. The Tribunal
disagreed with this interpretation and noted
that she had moved nine times in 2003. It was,
therefore, plausible that she did not receive the
letter informing her of the 30 day notice period.
The Tribunal set aside the trustee’s decision
and substituted its own with the result the
member was granted an extension of time
for reconsideration of her invalidity benefit.
D15-16\022